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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
* * *
KEVIN J. MIRCH, Esq.
Plaintiff,
vs.
BRUCE BEESLEY, ROB BARE, BRIDGETT
ROBB PECK, DONALD CHRISTENSEN,
STATE BAR OF NEVADA, DOES I-X, A-Z
CORPORATIONS.
Defendants.
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Case No.: 3:05-cv-00641-RLH-RAM
O R D E R
(Motion to Dismiss#12, Motion to
Dismiss-#13, Motion for Sanctions-#17)
Before the Court is Defendant State Bar of Nevadas (State Bar) Motion to
Dismiss (#12), filed April 19, 2006. Also before the Court is Defendants Bruce Beesley
(Beesley), Bridget Robb Peck (Peck), Rob Bare (Bare), and Don Christensens
(Christensen) (individual Defendants) Motion to Dismiss Plaintiffs First Amended
Complaint (#13), filed April 19, 2006. The Court has also considered Plaintiffs Opposition
(#46), filed October 9, 2006, and Defendants joint Reply (#47), filed October 23, 2006.
Also before the Court is Defendants Beesley, Peck, and Christensens Motion for
Sanctions (#17), filed May 19, 2006. The Court has also considered Plaintiffs Opposition (#33),
filed August 4, 2006, and Defendants Reply (#35), filed August 14, 2006.
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BACKGROUND
Plaintiff, appearing pro per, is an attorney licensed to practice law in the State of
Nevada. On September 26, 2002, Plaintiff filed a first amended complaint in the Second Judicial
District Court, Washoe County, Nevada, in the case styled Kevin J. Mirch, Doe Plaintiffs A-Z v.
McDonald, Carano & Wilson, LLP, Leigh Goddard, Esq., and Doe Attorneys 1-10, CV02-05644.
In that matter, Plaintiff brought three claims for relief against the defendants, whom allegedly
interfered with Plaintiffs representation of former clients. On October 9, 2003, Judge James
Hardesty entered an order dismissing the case, imposing Rule 11 sanctions, and referring the matter
to the State Bar for disciplinary investigation. After an investigation, the State Bar filed a formal
complaint against Plaintiff on June 14, 2004. The hearing was continued until December 7, 2006.
In relation to the pending disciplinary proceeding, Plaintiff filed an amended
complaint in this Court against the State Bar, Beesley, Peck, Bare, and Christensen (collectively
Defendants) on March 23, 2006, alleging that Defendants conspired to destroy his law practice
and legal reputation dating from 1985 to the present. He alleged that his success in litigating
important political and business issues, in which he disclosed corruption in the legal system, caused
Defendants to devise a scheme to cause harm to his reputation, practice, and legal license.
Defendants allegedly carried out this scheme by using the State Bar as a litigation tool to threaten
Plaintiff with criminal action, bar action, and disbarment if he litigated matters that were political,
had preferred attorney adversaries, or involved substantial clients.
As further evidence of Defendants alleged scheme, Plaintiff alleges that the State
Bar reviewed and prosecuted more than a dozen frivolous complaints filed against him, some of
which were written or encouraged by Defendants Beesley and Peck, whom Plaintiff alleges are law
partners and preferred attorneys with strong connections with the State Bar. According to
Plaintiff, Defendant Bare, bar counsel to the State Bar, was aware that Beesley and Peck used the
disciplinary process to obstruct justice, yet Bare failed to take any action to correct the misconduct
allegedly targeted at Plaintiff. Plaintiff also names Christensen as a Defendant, an attorney
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employed by the Reno City Attorneys Office, for having a conflict of interest, which allegedly
prevented Christensens involvement in the pending disciplinary matter.
In his amended complaint, Plaintiff brings the following five claims for relief: (1)
combination and conspiracy to violate the antitrust laws against all Defendants, (2) violation of his
constitutional due process rights, (3) breach of the covenant of good faith and fair dealing, (4)
tortious interference with business against all Defendants, and (5) injunctive relief against the State
Bar and Bare. Defendants contend that Plaintiff brought this suit to interfere with the disciplinary
proceeding pending against him. Thus, in separately filed motions, the State Bar now moves to
dismiss Plaintiffs complaint pursuant to Federal Rules of Civil Procedure (FRCP) 12(b)(1) for
lack of subject matter jurisdiction, and the individual Defendants move to dismiss pursuant to
FRCP 12(b)(1) and 12(b)(6) for failure to state a claim upon which relief can be granted.
DISCUSSION
I. Motions to Dismiss
A. Motion to Dismiss for Lack of Subject Matter Jurisdiction
Pursuant to FRCP 12(b)(1), a party may bring a defense by motion asserting that the
court lacks jurisdiction over the subject matter. The non-moving party seeking to invoke the
jurisdiction of the federal court bears the burden of establishing the courts subject matter
jurisdiction. See Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d
1221, 1225 (9th Cir. 1989). In reviewing a Rule 12(b)(1) motion, the court is not restricted to the
face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve
factual disputes concerning the existence of jurisdiction. McCarthy v. United States, 850 F.2d 558,
560 (9th Cir. 1988).
1. Eleventh Amendment Immunity
As an initial matter, the Court considers the State Bars argument that this Court
lacks subject matter jurisdiction over it because it is an arm of the State immune from Plaintiffs
suit by the Eleventh Amendment.
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The Eleventh Amendment provides that [t]he Judicial power of the United States
shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one
of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
U.S. Const. amend. XI. Though not explicitly stated, the Eleventh Amendments prohibition has
been construed to extend to suits brought against a state by its own citizens. Papasan v. Allain, 478
U.S. 265, 276 (1986). Under the Eleventh Amendment, citizens are barred from bringing suits
seeking either damages or injunctive relief against a state, an arm of the state, its
instrumentalities, or its agencies in federal court, Franceschi v. Schwartz, 57 F.3d 828, 831 (9th
Cir. 1991) (citation omitted), unless the state waives its immunity or Congress unequivocally
expresses its intent to abrogate the states immunity. Broughton Lumber Co. v. Columbia River
Gorge Commn, 975 F.2d 616, 619 (9th Cir. 1992).
Applying those principles here, the Court finds that the State Bar is entitled to
Eleventh Amendment immunity based on the State Bars status as an arm of the State. Ginter v.
State Bar of Nevada, 625 F.2d 829, 830 (9th Cir. 1980) (finding that the Nevada State Bar
Association, as an arm of the State, is not subject to suit under the Eleventh Amendment);
OConnor v. State of Nevada, 507 F.Supp. 546, 550 (D. Nev. 1981), affd, 686 F.2d 749 (9th Cir.
1982) (finding the State Bar of Nevada, as an arm of the State, immune from suit under the
Eleventh Amendment). In reaching this decision, the Court also relied on the State of Nevadas
decision to explicitly decline to waive its immunity from suit under the Eleventh Amendment, Nev.
Rev. Stat. 41.031(3), and the fact that Congress has not clearly abrogated the States immunity
with respect to 1983 cases, Quern v. Jordan, 440 U.S. 332, 342 (1979) or pendant state law
claims, Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-21 (1984).
Aside from this finding, however, Plaintiff argues that the State Bars shield of
Eleventh Amendment immunity does not always apply because Nevada Supreme Court Rule
(Nev. Sup. Ct. R.) 76(1) expressly states that the State Bar may sue and be sued. This argument
is without merit for several reasons. First, Plaintiff fails to explain why in this instance the State
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Bars immunity is not applicable. Second, the rule providing that the State Bar may sue and be
sued has had no effect in other federal cases finding the State Bar immune from suit under the
Eleventh Amendment. See, e.g., Ginter v. State Bar of Nevada, 625 F.2d 829 (9th Cir. 1980);
OConnor v. State of Nevada, 507 F. Supp. 546 (D. Nev. 1981). Third, it appears that the rule
permits the State Bar to sue or be sued in state courts, but does not impact the State Bars Eleventh
Amendment immunity in federal courts. See, e.g., Petty v. Tennessee-Missouri Bridge Commn,
359 U.S. 275, 276-77 (1959) (stating that where a public instrumentality is created with the right
to sue and be sued that waiver of immunity in the particular setting may be restricted to suits or
proceedings of a special character in the state, not the federal, courts.)
For the reasons discussed, the Court grants the State Bars motion to dismiss for
lack of subject matter jurisdiction and concludes that Plaintiffs federal and state claims (second,
third, fourth, and fifth claims for relief) against the State Bar are barred by the Eleventh
Amendment.
2. Antitrust Claims
In his second claim for relief, Plaintiff alleges that Defendants violated 1 and 2 of
the Sherman Anti-Trust Act (Sherman Act), 15 U.S.C. 1, 2, and seeks relief under 4 and
16 of the Clayton Act. The gravamen of Plaintiffs antitrust allegations appear to be that the
individual Defendants conspired with the State Bar to restrain Plaintiff from providing quality legal
representation to the public. The Defendants have carried out this conspiracy by allegedly allowing
the State Bar to be used as a business tool to cause harm to Plaintiffs business, causing a boycott
of Plaintiffs business due to the filing of false claims against Plaintiff with the State Bar, and
changing the terms and conditions of disciplinary action imposed or to be imposed against Plaintiff.
Defendants move to dismiss these claims on the grounds that they are exempt from antitrust
liability under the state action exemption doctrine announced in Parker v. Brown, 317 U.S. 341
(1943).
/ / / /
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The purpose of the Sherman Act is to suppress combinations to restrain
competition and attempts to monopolize by individuals and corporations. Parker v. Brown, 317
U.S. 341, 351 (1943). Consistent with that purpose, 1 of the Sherman Act makes unlawful
[e]very contract, combination . . . or conspiracy, in restraint of trade or commerce among the
several States. 15 U.S.C. 1. Section 2 of the Sherman Act, makes it unlawful to monopolize, or
attempt to monopolize, or combine or conspire with any other person or persons, to monopolize
any part of the trade or commerce among the several States. 15 U.S.C. 2. Private parties injured
by violations of these sections may sue under 4 of the Clayton Act, 15 U.S.C. 15, for treble
damages and costs of suit, including attorneys fees, and also under 16 of the Clayton Act, 15
U.S.C. 26, for injunctive relief.
While noting the Sherman Acts purpose, the Supreme Court in Parker v. Brown,
317 U.S. 341 (1943), found nothing in the language of the Sherman Act or in its history to suggest
that its purpose was to restrain a state or its officers or agents from activities directed by its
legislatures. Id. at 350-51. This holding has come to be known as the state action exemption
doctrine to the Sherman Act. Under this doctrine, any anti-competitive action which qualifies as
state action is not subject to the prohibitions of the Sherman Act. For example, in Goldfarb v.
Virginia State Bar, the Supreme Court held that the state action exemption doctrine was
inapplicable to price fixing activities of the state and county bar associations when the
anticompetitive activities were not compelled by direction of the State acting as a sovereign. 421
U.S. 773, 791 (1975).
A few years later, the Supreme Court distinguished Goldfarb from Bates v. State
Bar of Arizona, whereby it held that the challenged restraint, a disciplinary rule barring attorney
advertising, was an affirmative command of the Arizona Supreme Court under its Rules. . . . 433
U.S. 350, 360 (1977). After noting that the Arizona Supreme Court was the ultimate body
wielding the States power over the practice of law, the Supreme Court found that the restraint
[was] compelled by direction of the State acting as a sovereign, and as such was exempt from
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the Sherman Act. Id (quoting Goldfarb, 421 U.S. at 791).
i. Defendant State Bar
Here, unlike Bates or Goldfarb, Plaintiff challenges the Defendants alleged
improper usage of the State Bar as a litigation tool to file or threaten to file frivolous complaints or
grievances against him to protect preferred attorneys and to prevent him from representing
deserving members of the public.
To address Plaintiffs claim, the Court begins by noting that the Supreme Court of
Nevada is part of the judicial branch of the State of Nevada, and is created by Article 6 of the
Nevada Constitution. OConnor v. State of Nevada, 507 F. Supp. 546, 550 (D. Nev. 1981). With
its authority, the Supreme Court of Nevada created the State Bar to investigate and discipline legal
professionals in Nevada. Nev. Sup. Ct. R. 76, et seq. The State Bar, among other responsibilities,
carries out the Nevada Supreme Court rules relating to the filing of grievances and complaints.
Relevant to the instant litigation is Nev. Sup. Ct. R. 104(1)(a), which states that the State Bar
counsel shall [i]nvestigate all matters involving possible attorney misconduct or incapacity called
to bar counsels attention, whether by grievance or otherwise. After an investigation, the State Bar
counsel shall recommend in writing dismissal, . . . or the filing of a written complaint with the
appropriate disciplinary board for formal hearing. Nev. Sup. Ct. R. 105(1)(a).
Applying Nev. Sup. Ct. R. 104(1)(a) and 105(1)(a) here, the Court finds that the
challenged activity, that is the filing of complaints or grievances against Plaintiff, was properly
carried out by the State Bar. Even taking the facts in the light most favorable to Plaintiff, the Court
finds that regardless of whether frivolous complaints or grievances were filed, the State Bar is
charged with the responsibility of investigating such complaints or grievances to determine if the
attorneys conduct is subject to discipline. This conduct is authorized by the Supreme Court of
Nevada, an arm of the State, and therefore compelled by direction of the State acting as a
sovereign. For that reason, the State Bar is exempt from Plaintiffs Sherman Act claim, and
consequently, Plaintiffs claim for remedies under the Clayton Act fails. See State of New Mexico
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v. American Petrofina, Inc., 501 F.2d 363, 372 n.19 (9th Cir. 1974) (finding that since states are
not regulated by sections 1 and 2 of the Sherman Act, [the court] need not consider whether
sections 4 and 16 of the Clayton Act afford [the counterclaimant] the remedies it seeks.)
ii. Individual Defendants
The individual Defendants move to dismiss Plaintiffs antitrust claims on the
ground that they are exempt under the state action exemption doctrine because, as employees and
participants in the disciplinary process, they are state actors. Plaintiff, however, argues that the
individual Defendants conduct went outside the scope of the disciplinary process, thereby
dissipating any immunity that may have applied.
The state action exemption doctrine is not limited to governmental agencies alone
but extends as well to officers or agents of the State. See Parker v. Brown, 317 U.S. 341, 350-51
(1943); see also Saenz v. Univ. Interscholastic League, 487 F.2d 1026, 1028 (5th Cir. 1973).
Because the State Bar is an arm of the state exempt from Plaintiffs antitrust claims, the Court will
determine below whether the individual Defendants are officers or agents of the State Bar also
exempt from Plaintiffs antitrust claims.
a. Bare and Christensen
In bringing his anti-trust claims against Bare, Plaintiff appears to allege that Bare, as
bar counsel to the State Bar, was aware that Beesley and Peck used the disciplinary process to
obstruct justice, that Bare failed to prosecute conduct that constituted an obstruction of justice, and
despite the filing of false complaints against Plaintiff, Bare failed to initiate any action.
As bar counsel, Bare is responsible for investigating all matters involving possible
attorney misconduct. Nev. Sup. Ct. R. 104(1)(a). At the conclusion of his investigation, Bare must
recommend in writing whether to dismiss or file a formal complaint. Nev. Sup. Ct. R. 104(1)(b).
Bares recommendation is then reviewed by a screening panel, which determines whether to
approve, reject, or modify his recommendation. Nev. Sup. Ct. R. 105(1). Bare is also responsible
for prosecuting all proceedings under the Nevada Supreme Court rules before all forums in the
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name of the State Bar of Nevada. Nev. Sup. Ct. R. 104(1)(c).
In light of Bares official duties and Plaintiffs allegations, the Court finds that
Bares conduct is exempt from Plaintiffs antitrust claims. It is clear from Plaintiffs allegations,
taken in the light most favorable to him, that Bare undertook the alleged actions in his role as bar
counsel. First, Plaintiff conclusively asserts that Bare failed to prosecute actions that constituted an
obstruction of justice or failed to initiate any action despite the filing of false complaints. Both of
these allegations fail to take into account the fact that Bare is not the sole decision-maker in
prosecuting attorney misconduct. Bare simply investigates and recommends the type of action that
should be taken, while the screening panel ultimately determines whether it agrees or disagrees
with Bares recommendation. Second, Plaintiff contends that Bare was aware that Beesley and
Peck used the disciplinary process to obstruct justice. Even if Bare was aware of such conduct,
Plaintiff still fails to overcome the fact that the decision to initiate disciplinary action does not rest
with Bare alone.
Next, Plaintiff alleges that Christensen, an attorney employed by the Reno City
Attorneys Office, had a conflict of interest that prevented his involvement in the pending
disciplinary hearing. Although Plaintiff fails to clearly indicate Christensens status or position
with the State Bar, Plaintiffs opposition to the instant motion states that Christensen was part of
the State Bars disciplinary process that determined that a formal grievance should proceed further.
Therefore, the Court presumes that Christensen is a member of the State Bars disciplinary board.
In that position, Christensen is charged with the responsibility of conducting
hearings on formal complaints of misconduct. Nev. Sup. Ct. R. 103(7)(a). In accordance with this
responsibility, Christensen was allegedly a part of the disciplinary process that determined that a
formal grievance should proceed against Plaintiff. Plaintiff alleges that Christensen should not
have been a part of this process because he was once involved in a legal matter with Plaintiff,
thereby presenting a conflict of interest. Against this backdrop, it is clear that Plaintiffs allegations
relate to Christensens conduct as an agent of the State Bar, thereby making Christensen exempt
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from Plaintiffs antitrust claims.
b. Beesley and Peck
As for his antitrust claims against Beesley and Peck, Plaintiff essentially alleges that
Beesley and Peck filed frivolous complaints against him and acted outside the scope of the
disciplinary process by advertising their ability to influence the State Bar to impact Plaintiffs
cases. In light of these allegations, the Court begins by noting that neither Beesley nor Peck are
officials or agents of the State Bar, but are private attorneys. To defeat Plaintiffs claim against
them, the individual Defendants argue that Beesley and Peck are entitled to absolute quasi-judicial
immunity. They rely on Nev. Sup.Ct. R. 106(1), which states that [a]ll participants in the
discipline process, including grievants, bar counsel staff, members of the disciplinary panels . . .
shall be absolutely immune from civil liability. No action may be predicated upon the filing of a
disciplinary complaint or grievance or any action taken in connection with such a filing by any of
the participants. By applying this rule here, it is clear that Beesley and Peck as grievants used the
disciplinary process to file complaints or grievances against Plaintiff. Those actions are protected
by Nev. Sup. Ct. R. 106(1), and as a result, they are immune from Plaintiffs claim to that extent.
However, it is their alleged conduct that occurred outside of the disciplinary process
that potentially negates absolute immunity. As to Beesleys conduct, Plaintiff alleges that Beesley
approached and encouraged an attorney to cause substantial harm to Plaintiffs legal career, that
Beesley advised this same attorney that he would settle a case if the attorney would file a bar
complaint against Plaintiff, and on another occasion Beesley allegedly arranged for Plaintiffs
discipline and bragged about it to an insurance company in order to obtain the clients business.
(Compl. 44-45, 71.) As to Pecks conduct, the only specific allegation Plaintiff makes is that
Peck and Beesley either encouraged or wrote nearly one dozen bar complaints against Plaintiff.
(Compl. 96.) Neither Beesley nor Pecks conduct in this instance relates to their filing of
disciplinary complaints or grievances, and thus, is not protected by Nev. Sup. Ct. R. 106(1).
Therefore, the Court will consider, infra B.1., whether Plaintiff has stated a claim upon which
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relief can be granted against Beesley and Peck.
Based on the foregoing analysis, the Court concludes that Defendants State Bar,
Bare, and Christensen are exempt from Plaintiffs antitrust claims. The antitrust claims against
Defendants Beesley and Peck are also dismissed pursuant to Nev. Sup. Ct. R. 106(1) to the extent
that they used the disciplinary process to file grievances against Plaintiff. Plaintiffs claim for
remedies under the Clayton Act is also dismissed because there is no violation of the Sherman Act.
B. Motion to Dismiss for Failure to State a Claim
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a court may
dismiss a complaint for failure to state a claim upon which relief can be granted. [A] complaint
should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would entitle him to relief. Conley v.
Gibson, 355 U.S. 41, 45-46 (1957). All factual allegations set forth in the complaint are taken as
true and construed in the light most favorable to [p]laintiffs. Epstein v. Washington Energy Co.,
83 F.3d 1136, 1140 (9th Cir. 1996). Dismissal is appropriate only if it is clear that no relief could
be granted under any set of facts that could be proved consistent with the allegations. Hishon v.
King & Spalding, 467 U.S. 69, 73 (1984).
1. Antitrust Claims against Beesley and Peck for Conduct Outside the
Disciplinary Process
Even if Plaintiffs antitrust claims are not barred by absolute immunity, the
individual Defendants argue that Plaintiff has failed to state his antitrust claims with the requisite
particularity. However, contrary to their argument, [t]here is no special rule requiring more
factual specificity in antitrust pleadings than is required under FRCP 8(a). Datagate, Inc. v.
Hewlett-Packard Co., 941 F.2d 864, 870 (9th Cir. 1991); see also Fed.R.Civ.P. 8(a)(2) (requiring a
short and plain statement of the claim showing that the pleader is entitled to relief). To meet the
general pleading requirements of FRCP 8, Plaintiff need only give Defendants fair notice of what
the claims are and the grounds upon which they rest. See Datagate, Inc, 941 F.2d at 870.
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To address this claim, the Court notes that the State Bar, Bare, and Christensen are
exempt as Defendants and that Beesley and Peck are the remaining Defendants under this claim.
Therefore, to establish a claim against Beesley and Peck under 1 of the Sherman Act, Plaintiff
must show (1) that there was a contract, combination, or conspiracy, i.e., an agreement or
concerted action toward a common goal, (2) that the agreement unreasonably restrains trade,
under either a per se rule of illegality or a rule of reason analysis, and (3) that the restraint affected
interstate commerce. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Assn., 809 F.2d 626,
632-33 (9th Cir. 1987)(citations omitted). To properly allege a conspiracy to monopolize in
violation of 2 of the Sherman Act, Plaintiff must establish: (1) the existence of a combination or
conspiracy to monopolize; (2) an overt act in furtherance of the conspiracy; (3) the specific intent to
monopolize; and (4) causal antitrust injury. Paladin Assocs., v. Montana Power Co., 328 F.3d
1145, 1158 (9th Cir. 2003). Thus, under either section, Plaintiff must show that Beesley and Peck
acted in concert with one another to affect interstate commerce.
In this case, Plaintiff alleges that Beesley and Peck engaged in a combination and
conspiracy to restrain competition in the area of business litigation and engaged in a conspiracy to
monopolize or attempt to monopolize the legal business. In his complaint, Plaintiff alleges specific
occasions in which Beesley and Peck used the disciplinary process to obstruct justice. However,
none of these allegations meet the essential element of his claims, which is that an agreement
existed between Beesley and Peck to unreasonably restrain competition or monopolize the legal
field. The fact that Beesley and Peck may have filed frivolous grievances against Plaintiff or even
incited others to do so does not suggest that an agreement existed between them to prevent Plaintiff
from practicing law.
Even if Beesley and Peck did enter an agreement, Plaintiff fails to indicate how the
agreement unreasonably restrained trade and that the restraint affected interstate commerce.
Plaintiffs complaint is also devoid of facts showing that Beesley and Peck had a specific intent to
monopolize the legal arena. In the absence of such, Plaintiff fails to state a claim upon which relief
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can be granted for Beesley and Pecks conduct that allegedly occurred outside the disciplinary
process. Because Plaintiff fails to assert a Sherman Act claim, his claim for remedies under the
Clayton Act also fails.
2. Due Process Claim and Injunctive Relief Claim
Plaintiffs second claim for relief alleges that Defendants violated his constitutional
due process rights in disciplinary matters against him before the State Bar. In his fifth claim for
relief, Plaintiff seeks injunctive relief against the State Bar and Bare to enjoin the pending
disciplinary proceeding against him. Because the Court has already found that the State Bar is
immune, the Court need not address these claims as it applies to the State Bar. As for the
individual Defendants, they argue that the Younger abstention doctrine precludes this Court from
addressing Plaintiffs claims.
i. Younger Abstention Doctrine
Younger v. Harris, 401 U.S. 37 (1971), and its progeny established the general
principle that federal courts should, absent extraordinary circumstances, abstain from granting
injunctive or declaratory relief that would interfere with pending state judicial proceedings. Hirsh
v. Justices of Supreme Court of State of Cal., 67 F.3d 708, 712 (9th Cir. 1995); see also Middlesex
County Ethics Comm. v. Garden State Bar Assn, 457 U.S. 423, 432-37 (1982) (applying Younger
abstention doctrine to state bar disciplinary proceeding). In the absence of extraordinary
circumstances, abstention is required if the state proceedings: (1) are ongoing, (2) implicate
important state interests, and (3) provide the plaintiff an adequate opportunity to litigate federal
claims. Hirsh, 67 F.3d at 712.
Beginning with the first element, the Court finds that the disciplinary proceeding
here constitutes an ongoing state judicial proceeding. See Middlesex, 457 U.S. at 432. First, it is
clear that at the time Plaintiff initiated this suit, he faced an ongoing disciplinary proceeding.
Second, the disciplinary process is judicial in nature. It is initiated by the filing of a grievance,
which is investigated by bar counsel who may later recommend dismissal or the filing of a written
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complaint. Nev. Sup. Ct. R. 104(a), 105(1)(a). Bar counsels recommendation is reviewed by a
screening panel that must decide to approve, reject, or modify the recommendation. Nev. Sup. Ct.
R. 105(1)(a). Whatever decision is reached by the review panel, bar counsel is responsible for
notifying the respondent thereof. In response, the respondent may file written objections and a
statement electing either a formal or informal hearing. Nev. Sup. Ct. R. 105(1)(b). This indicates
the judicial character of the disciplinary process. See, e.g., Nev. Sup. Ct. R. 105(c) and 105(2)(c).
As for the second element, the Court finds that the disciplinary proceedings
implicate important state interests, specifically the States interest in regulating the conduct of the
attorneys it licenses. See Hirsh, 67 F.3d at 712-13 (citing Middlesex, 457 U.S. at 434); see also,
e.g., Michel v. Bare, 230 F. Supp. 2d 1147, 1159-60 (D. Nev. 2002) (stating that [t]he State Bar of
Nevada and the Nevada Supreme Court have a substantial and legitimate interest in prohibiting the
unauthorized practice of law as well as a legitimate interest in promoting attorney accountability. . .
.)
Regarding the third element, so long as the constitutional claims of Plaintiff can be
determined in the State disciplinary proceeding and there is no showing of bad faith, harassment, or
some other extraordinary circumstances, the third factor is met and this Court should abstain. See
Middlesex, 457 U.S. at 435. In his due process claim, Plaintiff seeks actual and punitive damages,
and presumably injunctive relief as detailed in his fifth claim for relief. To the extent that
injunctive relief is sought, Plaintiff mainly alleges that his due process rights have been violated
because Defendants have failed to conduct the pending disciplinary proceeding according to the
rules and procedures outlined by the State Bar. Consequently, Plaintiff requests the Court to enjoin
the pending disciplinary proceeding until proper discovery takes place and the Nevada
Supreme Court can hear the matter.
To meet the third element, a plaintiff bears the burden of demonstrating that his
constitutional claim cannot be litigated in the pending disciplinary proceeding. See Pennzoil Co. v.
Texaco, Inc., 481 U.S. 1, 14 (1987) (finding that a federal plaintiff bears burden of showing that
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state procedural law barred presentation of [its] claims) (quoting Moore v. Sims, 442 U.S. 415,
432 (1979)). Therefore, when a litigant has not attempted to present his federal claims in related
state-court proceedings, a federal court should assume that state procedures will afford an adequate
remedy, in the absence of unambiguous authority to the contrary. Pennzoil Co., 481 U.S. at 15.
Here, Plaintiff argues that the Younger abstention doctrine does not preclude his lawsuit because
his claims will not be vindicated by the bar disciplinary proceedings. This conclusive assertion
fails to demonstrate that Plaintiff is prevented from litigating his constitutional claim in the pending
disciplinary proceeding. Thus, the Court concludes that Plaintiffs constitutional claim can be
addressed in the pending disciplinary proceeding.
Since all three elements of the Younger abstention doctrine are met and Plaintiff has
alleged no extraordinary circumstances preventing Youngers application, the Court dismisses
Plaintiffs second and fifth claim for relief on abstention grounds.
ii. Due Process Claim for Damages
In addition to injunctive relief, Plaintiff also seeks actual and punitive damages
under his due process claim. Plaintiff does not indicate the grounds upon which he brings this
claim; however, the Court presumes it is brought pursuant to 42 U.S.C. 1983 as Plaintiffs alleges
it as a basis for the Courts jurisdiction. A claim under 42 U.S.C. 1983 prohibits persons acting
under color of state law from depriving any person of any rights, privileges or immunities
secured by the Constitution or federal law. To the extent that Plaintiff seeks damages against all of
the Defendants for his due process claim, the Court finds that the State Bar, Bare, and Christensen
are entitled to Eleventh Amendment immunity. See OConnor v. State of Nevada, 507 F. Supp
546, 550 (D. Nev. 1981) (holding that the state bar association, as an agency of the state, is not a
person subject to 1983 actions); see also Will v. Michigan Dept. of State Police, 491 U.S. 58,
71 (1989) (finding that state officials acting in their official capacities are not persons subject to
suit under 1983).
/ / / /
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As for Beesley and Peck, whom are not state actors, Plaintiff must have alleged that
they conspired with the State Bar, Bare, or Christensen to violate Plaintiffs constitutional rights in
order to subject them to liability under 1983. See Franklin v. Fox, 312 F.3d 423, 441 (9th Cir.
2002) (finding that a private individual may be liable under 1983 if she conspired or entered joint
action with a state actor.) Plaintiff does not allege that Beesley and Peck conspired with either the
State Bar, Bare, or Christensen to violate his due process rights. In fact, Plaintiff does not even
mention Beesley or Peck by name in his due process claim. Based on the reasons stated, the Court
dismisses Plaintiffs 1983 claim against Beesley and Peck.
Accordingly, the Court dismisses Plaintiffs second claim for relief for damages for
failure to state a claim upon which relief can be granted.
3. State Tort Claims
Plaintiffs third and fourth claims for relief assert state law claims of (1) tortuous
interference with business, and (2) breach of covenant of good faith and fair dealing against
Defendants. The individual Defendants contend that the third and fourth claims should be
dismissed because those claims are also barred by the Eleventh Amendment.
These claims are rightfully dismissed against the State Bar, Bare, and Christensen as
they are entitled to Eleventh Amendment immunity. With respect to Peck and Beesley, as already
stated, they are not entitled to Eleventh Amendment immunity. However, Plaintiffs complaint
fails to allege any facts indicating how, if at all, Peck or Beesley are liable under the third and
fourth causes of action. Plaintiffs third and fourth causes of action simply allege improper conduct
by individuals not named as Defendants.
Although the individual Defendants make additional arguments for dismissing
Plaintiffs state law claims, the Court declines to address those arguments as they were not raised
until Defendants filed their Reply brief. See United States v. Bohn, 956 F.2d 208, 209 (9th Cir.
1992 ) (noting that courts generally decline to consider arguments raised for the first time in a reply
brief.)) Thus, on the basis asserted above, Plaintiffs third and fourth claims for relief
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are dismissed as they fail to state a claim for which relief can be granted.
II. Motion for Rule 11 Sanctions
Defendants Beesley, Peck, and Christensen move for an award of sanctions against
Plaintiff on the grounds that Plaintiffs complaint is baseless and was made without a reasonable
and competent inquiry in violation of FRCP 11. Defendants further move for compensation for
having been required to respond to Plaintiffs frivolous complaint.
Under Rule 11, an attorney or unrepresented party, [b]y presenting to the court
(whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other
paper . . . is certifying that to the best of the persons knowledge, information, and belief, formed
after an inquiry reasonable under the circumstances,- -
(1) it is not being presented for any improper purpose, such as to harass or
to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by
existing law or by a nonfrivolous argument for the extension, modification,
or reversal of existing law or the establishment of new law;
(3) the allegations and other factual contentions have evidentiary support or, if
specifically so identified, are likely to have evidentiary support after a reasonable
opportunity for further investigation or discovery[.]
Fed. R. Civ. P. 11(b). When an attorney or party violates this Rule, the court may . . . impose an
appropriate sanction. Fed. R. Civ. P. 11(c). Before doing so, the court must conduct the following
two-prong inquiry: (1) whether the complaint is legally or factually baseless from an objective
perspective, and (2) if the attorney has conducted a reasonable and competent inquiry before
signing and filing it. Christian v. Mattel, Inc., 286 F.3d 1118, 1127 (9th Cir. 2002) (citation
omitted). As shorthand for this test, the [Ninth Circuit] use the word frivolous to denote a filing
that is both baseless and made without a reasonable and competent inquiry. Holgate v. Baldwin,
425 F.3d 671, 676 (9th Cir. 2005) (quoting Moore v. Keegan Mgmt. Co., 78 F.3d 431, 434
(9th Cir. 1996).
To counter the instant motion, Plaintiff argues that his complaint is not frivolous and
is the product of years of investigation and documentation of Defendants wrongful conduct.
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Plaintiff further contends that he conducted a legal investigation into the claims and determined
that Defendants conduct is not entitled to absolute immunity, that only a qualified immunity
applies to non-prosecutorial conduct of the Defendants, and that the Eleventh Amendment does not
protect Defendants.
Based on an objective review of the complaint, the Court finds that Plaintiffs
complaint is legally baseless. The Court further finds that Plaintiff has failed to conduct a
reasonable and competent inquiry before filing his complaint. This conclusion is based on the
following. First, the claims against Christensen are barred by the Eleventh Amendment and the
state action exemption doctrine. If Plaintiff conducted even a cursory review of the law relating to
Eleventh Amendment immunity and state action exemption, Plaintiff would have known that
Christensen, as a member of the State Bars disciplinary board, is a state official entitled to
immunity and exemption. Second, the claims against Beesley and Peck lack factual and legal
support. It appears to the Court that Plaintiff brought his first, second, third, and fourth claims for
relief against Beesley and Peck. In his first claim, Plaintiff failed to allege a combination or
conspiracy between Beesley and Peck. And, in his second, third, and fourth claim for relief,
Plaintiff failed to even allege improper conduct by Beesley and Peck that violated the stated claim
for relief.
Although the instant motion is brought by Beesley, Peck, and Christensen, the Court
notes that in reviewing the complaint in its entirety, Plaintiff generally failed to conduct a
reasonable and competent inquiry into his complaint before signing and filing it. Among other
things, the complaint is excessive, there are a total of sixty (60) pages and 400 paragraphs dating
activity that occurred from 1985 to the present. And most of all, the complaint is incoherent. To
avoid pointing out the many problems with Plaintiffs complaint, the Court notes that it appears
Plaintiff filed his complaint for the mere purpose of delaying the pending disciplinary proceedings.
For the reasons discussed, the Court finds that issuing sanctions in the form of
attorneys fees is an appropriate remedy. Because Defendants Beesley, Peck, and Christensen have
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failed to indicate a reasonable amount of attorneys fees, the Court is unable at this point to enter an
appropriate amount. Therefore, the Court directs Defendants Beesley, Peck, and Christensen to
submit evidence of reasonable attorneys fees.
CONCLUSION
Accordingly, and for good cause appearing,
IT IS HEREBY ORDERED that Defendant State Bars Motion to Dismiss (#12) is
GRANTED.
IT IS FURTHER ORDERED that Defendants Beesley, Peck, Bare, and
Christensens Motion to Dismiss Plaintiffs Amended Complaint (#13) is GRANTED.
IT IS FURTHER ORDERED that Defendants Motion for Sanctions (#17) is
GRANTED to the extent that Defendants Beesley, Peck, and Christensen submit evidence of
reasonable attorneys fees within two weeks from the date of this Order. Plaintiff, thereafter, has
one week to file an Opposition thereto, if any. Defendants Beesley, Peck, and Christensen are then
given three days to file a Reply, if any.
Dated: January 9, 2007.
____________________________________
ROGER L. HUNT
United States District Judge
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